Recently, the decisions regarding the TCPA’s ATDS definition have revolved around the question of whether that definition includes only devices that actually generate random or sequential numbers or also devices with a broader range of functionalities. However, a string of recently released TCPA summary judgment opinions remind us that focusing on the level of human intervention used in making a call is also an important and decisive inquiry that must be made before determining whether a particular device is an ATDS. Indeed, over the last week three separate caller-defendants have used the human intervention issue to defeat plaintiffs’ TCPA claims.
Ramos v. Hopele of Fort Lauderdale– EZ-Texting Program Not an ATDS:
In Ramos v. Hopele of Fort Lauderdale, the United States District Court for the Southern District of Florida was tasked with analyzing the EZ-texting platform, which is a text messaging software platform offered to businesses and franchises, whereby the business can write, program, and schedule text messages to be sent to a curated list of consumer mobile phone numbers.
The prevailing issue in Ramos was whether the EZ-texting software, as used by the defendant, qualified as an ATDS. The plaintiff focused her argument on both the “capacity” and “number generation” issues, asserting that the EZ-texting program met the TCPA’s ATDS definition because it had the potential capacity to organize and create caller lists and was itself responsible for generating the numbers immediately before the text message was sent out. The court’s opinion, however, focused on who selected the telephone numbers and placed an emphasis on the level of human intervention that occurred prior to the text messages being sent:
Under ACA International, the appropriate standard to determine whether the EZ-texting program is an automatic telephone dialing system is whether the program (1) lacks the capacity to randomly or sequentially generate phone numbers, or alternatively, (2) lacks the ability to send messages without human intervention…. [T]he program can only be used to send messages to specific identified numbers that have been inputted into the system by the customer…. [T]his amount of human intervention is sufficient to negate the EZ-texting program as an automatic telephone dialing system within the applicable standard.
With this justification, then, the court determined that the plaintiff had not been texted via an ATDS, eliminating his TCPA claims and providing the defendant with a win.
Glasser v. Hilton Grand Vacations Company– Intelligent Mobile Connect System Not an ATDS:
In Glasser v. Hilton Grand Vacations Company, the United States District Court for the Northern District of Florida was given the opportunity to jump into the ATDS debate, and just like in Ramos the decision focused on the level of human intervention used to complete the call. In this case, the device in question was the Intelligent Mobile Connect (“IMC”) system, which the court described as a click-to-dial system, whereby the defendant’s employee would manually click a “Make Call” button on the IMC system computer screen, which would then “launch” the call and, if picked up on the other end, transfer the call to a waiting agent.
According to the plaintiff, the IMC system clearly met the ATDS definition, as the dialing function itself was not manually accomplished by the defendant’s employee, but rather by the system, which dialed the number after the employee clicked the “Make Call” button. The court, however, disagreed, noting that the plaintiff’s argument “fail[ed] to appreciate the integral part that human intervention plays in the calling process.” Reiterating the conclusion reached by the Southern District of Florida in Ramos, the Glasser court stated:
ACA Int’l makes it clear that an autodialer must both generate the numbers and dial them. Accordingly, it matters not that the computer actually dials the number forwarded to it by the clicking agent. Rather, the focus is on the agent’s human intervention in initiating the calling process. Since it is undisputed that calls cannot be made unless and until an agent clicks on the screen and forwards a telephone number to the server to be called, Defendant’s “point-to-click” system does not constitute an autodialer system under the TCPA.
Thus, just like in Ramos, the court adopted a straightforward analysis focusing on the level of human intervention that occurred – i.e., the employee selecting (or “generating”) the telephone numbers that were to be called.
Fleming v. Associated Credit Services, Inc.– LiveVox Human Call Initiator System Not an ATDS:
This final case in which the human intervention issue became a focal point of the court’s decision is Fleming v. Associated Credit Services, Inc. There, the United States District Court for the District of New Jersey was asked to determine whether the LiveVox Human Call Initiator system – another click-to-dial system – fell within the TCPA’s ATDS definition. While a majority of the Fleming court’s analysis focused on whether the LiveVox system was a predictive dialer and, if so, whether such devices were autodialers under the TCPA, it additionally focused on whether the LiveVox system required enough human intervention to fall outside of the ATDS definition.
Like the click-to-dial device at issue in Glasser, the LiveVox system placed a call after a “clicker agent” physically clicked on or pressed the enter key to initiate a call to a particular number, at which point the call would be transferred to a “closer agent” who is available to take the call. Unlike the Glasser device, however, the LiveVox device did not allow the “clicker agent” to bypass a number once it appeared on the agent’s screen, requiring the agent to either launch the call or log out of the system and restart it. According to the plaintiff, when combined, the functionalities of the LiveVox system were enough to make the device a “predictive dialer” (which, according to the plaintiff, fell within the TCPA’s ATDS definition) and, furthermore, did not provide for enough human intervention to fall outside of the TCPA’s scope. The court, however, disagreed on all fronts.
As an initial matter, the court joined the chorus of district and appellate courts that have found the FCC’s 2003, 2008, and 2015 predictive dialer rulings to be erased by the D.C. Circuit’s ACA International decision. It also chose to align itself with the courts that have found the TCPA itself to not apply to predictive dialers that “dial numbers from a list that was not randomly or sequentially generated when the list was created,” adopting in full the analysis used by the United States District Court for the Northern District of Illinois in Pinkus v. Sirius XM Radio, Inc.
The Fleming court then took on the plaintiff’s human intervention argument, wherein the plaintiff alleged that the LiveVox system lacked human intervention that was “meaningful” enough to place it outside of the reach of the TCPA. And despite its acknowledgement that “[t]he present state of the ‘human intervention test is difficult to determine,” it concluded that the LiveVox device employed enough human intervention to fall outside of the TCPA’s ATDS definition:
Measuring the descriptions of the “clicker agent” system employed by [the defendant] against the words of the statute, I find that [the plaintiff] has not sufficiently shown that the system is so lacking in human intervention that it would qualify as an ATDS. The “clicker agent”—a person—is the one who initiates the call; calls are never placed by completely automatic, electronic means.
Thus, like the Glasser court, the Fleming court focused on the fact that the call never would have been dialed automatically if a person had not at first initiated the dialing process, and that such initiation was itself enough human intervention for the device to fall outside the ATDS definition.